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Americans have become increasingly supportive of gay marriage over the last 30 years, and some believe that trend will carry over to the Supreme Court, which will hear arguments this week on two same-sex marriage cases.

Attention is focused most keenly on Justice Anthony Kennedy, who is expected to cast the swing vote. Constitutional scholar Erwin Chemerinsky, dean of the UC Irvine School of Law, is among those who see gay marriage becoming more widely accepted – and who see Kennedy sharing that position.

"I think Kennedy wants to be on the right side of history and does not want to write an opinion that will be regarded with disdain in the future," Chemerinsky said.

Chemerinsky's view is not universal. Constitutional scholar John Eastman of Chapman University's School of Law thinks Kennedy would prefer to let politicians resolve the issue. But backers of gay marriage are hoping the high court will once again issue a ruling that parallels shifting public mores.

In 1896, the Supreme Court ruled that "separate-but-equal" racial segregation was constitutional in Plessey v. Ferguson, but reversed that ruling in 1954's Brown v. Board of Education – a decision that reflected growing unease with segregation. Similarly, the Supreme Court's Loving v. Virginia in 1967 came amid growing acceptance of interracial marriage.

In 1996, when Gallup first polled on whether same-sex couples should receive the same benefits as those in traditional marriages, 27 percent of Americans surveyedwere in favor. That number has grown steadily since, with a November poll showing 53 percent in favor and 46 percent opposed. Additionally, an ABC-Washington Post poll this month put nationalsupport for gay marriage at 58 percent, a steady climb since it began asking the question in 2004.

In California, 28 percent supported gay marriage in 1977, 38 percent supported it in 1997, and 61 percent supported it in a February survey, according to The Field Poll.

The younger the age group, the higher the support for gay marriage. Additionally, some who once opposed gay marriage have changed their minds. In the past year, converts have included President Barack Obama, former Republican gubernatorial candidate Meg Whitman, and conservative GOP Ohio Sen. Rob Portman.

'WHERE HISTORY IS GOING'

The first of the two issues before the Supreme Court is whether to uphold California's Proposition 8, which bans gay marriage and was approved by 52 percent of voters in 2008. The second case is a challenge of the federal Defense of Marriage Act, which bans gay couples from receiving the federal benefits available to heterosexual marriedcouples.

Prop. 8 will be heard on Tuesday, DOMA will be heard Wednesday, and a ruling is expected in June.

"I think that ultimately Anthony Kennedy has to decide whether he wants to write the next Brown v. Board of Education or the next Plessy v. Ferguson," Chemerinsky said. "There is no doubt where history is going on this issue."

Not so fast, Eastman says.

"I think there has been some change over that past decade, but I don't think it's that large," said Eastman, chairman of the National Organization for Marriage, which supports bans on gay marriage. He questions the methodology and results of some national polling, countering with NOM's own November poll, which showed 51 percent "strongly agreed" that "marriage is between one man and one woman" and another 10 percent "somewhat agreed."

"Even if there is a trend, is it peaking or is it continuing on a trend line?" he said. "It remains an open question whether this will be an issue like abortion, which remains contentious over time."

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The battle over California's Proposition 8 has extended long past the 2008 election, with the Supreme Court set to hear arguments Tuesday on the constitutionality of the law. REGISTER FILE PHOTO
Justice Anthony Kennedy is expected to be the swing vote as the Supreme Court takes up the issues of Prop. 8 and DOMA on March 26. FILE: CHARLES DHARAPAK, ASSOCIATED PRESS

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